Monday, January 25, 2010

Medical-marijuana users on uncertain ground in workplaces

DENVER â€" Last year, Dorian Beth Wenzel, a Manitou Springs, Colo.,writer and arthritis sufferer, penned a letter to a local newspaper thatdisclosed her status as a medical-marijuana patient.

The paper printed the letter, and soon afterward Wenzel found herselfface-to-face with the human-resources director of the nonprofitorganization she works for. Wenzelâ€™s office, her HR director toldher, is a drug-free workplace.

â€œIt is kind of scary when your HR department is telling you thatyou could be fired,â€ Wenzel said. â€œAnd itâ€™s like,â€˜Why?â€™ â€

To Coloradoâ€™s already-vexing cannabis conundrum, add yet anotherriddle: Are medical-marijuana patients protected from discipline undertheir employersâ€™ anti-drug policies?In the past week, two other stories that pose such a question haveemerged:

-- In the first, an Idaho Springs high school teacher and football coachresigned from the school after being charged with smoking marijuana onschool grounds, even though he said he was a legal patient.

-- The second involves a Denver city employee who failed a routine drugtest taken after an on-duty car accident. The employee saidmedical-marijuana use accounted for the positive test.

Can an employer punish someone for doing something that isconstitutionally protected?

â€œThis issue is up in the air right now,â€ said Vance Knapp,a Denver lawyer with Sherman & Howard who deals in employment law.â€œIt hasnâ€™t been litigated through the courts.â€

In other words, nobody really knows yet.

The constitutional amendment that authorizes medical marijuana inColorado has this to say on the matter: â€œNothing in this sectionshall require any employer to accommodate the medical use of marijuanain any work place.â€

That provision makes on-the-job use or impairment a clear violation at adrug-free workplace, but the outer boundaries of the provision aresubject to greater debate.

Advocacy organizations contend that employers have interpreted thelanguage broadly, using it to punish even patients who use medicalmarijuana in off-the-clock hours and never show up to work impaired, asWenzel said she doesnâ€™t.

â€œItâ€™s been deciphered to mean that employers can fire amedical-marijuana patient for just about anything,â€ said BrianVicente, the executive director of the medical-marijuana patient-rightsgroup Sensible Colorado. â€œBasically, itâ€™s a form oflegalized discrimination against sick people who choose to use medicalmarijuana.â€

Courts ruling on similar questions in two other states â€"California and Montana â€" have sided with employers in giving themauthority to fire medical-marijuana patients who fail company drugtests. But there are two key ways in which Coloradoâ€™s laws differfrom those states:

- Coloradoâ€™s medical-marijuana law is embedded in thestateâ€™s constitution rather than just statutes.

- Colorado has something called the Lawful Off-Duty Activities Statute,which prevents employers from punishing employees for doing somethingoff-duty that is legal.

Boulder lawyer Jeff Gard, who represents medical-marijuana patients andsaid he gets several calls per week from patients worried about keepingtheir jobs, said state and federal anti-disability-discrimination lawsalso would protect patients.

â€œYouâ€™re not going to tell a diabetic, â€˜Weâ€™regoing to fire you for using insulin,â€™ â€ Gard said.

Knapp, the Denver lawyer, said marijuanaâ€™s status under federallaw as an illegal drug â€" no matter how itâ€™s used â€"could nullify all those lawsâ€™ protections. But he quickly notedthat an Arapahoe County judgeâ€™s recent ruling â€" in whichthe judge said a city couldnâ€™t cite federal law to shut down amedical-marijuana dispensary â€" might counter that argument.

For now, Knapp said he is advising the employers who ask him about theissue to update their anti-drug policies to specify that they includedrugs that are illegal according to federal law as well as locally.

â€œEmployers need to be very cautious in addressing this situationbecause there are a lot of land mines out there,â€ Knapp said.

1 comment:

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